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Should restaurant workers be penalized when customers leave without paying?

Recently, a New York City waitress made headlines when she posted an angry message on a social media site. The waitress had been waiting on a party, who rang up a $96 tab and then snuck out without paying. The restaurant’s policy was that a server is responsible when a customer leaves without paying. The waitress refused to pay the $96 and was fired.

Although this story may sound surprising, the truth is that many restaurants hold servers responsible if customers fail to pay their checks. Many restaurants expect their servers to keep track of several different tables, as well as to perform security, which can be impossible at times. Servers are supposed to give a great deal of attention to their customers, but can’t always keep a watch on every table at once, especially if they are in another part of the restaurant at the time the customers choose to leave. Unfortunately for the servers, customers who leave without paying their checks are not uncommon.

Servers often take dramatic steps to make sure their customers don’t leave without paying, for fear of losing pay. In an extreme case, a waitress was paralyzed when she was hit by a customer who was driving away without paying. A few years before that, another waitress was killed in a similar situation.

Unfortunately, there aren’t a lot of protections against this practice in federal labor laws. The Fair Labor Standards Act prevents employers from taking the tips of servers. The FLSA also prevents employers’ from withholding wages of employees whose customers who leave without paying if that would bring an employee’s pay to less than minimum wage. However, the server may still potentially lose a lot of money if a customer leaves without paying.

The good news is that California law provides that employers cannot take deduction from wages of employees for any cash shortage, loss of equipment, or breakage, unless the shortage, loss or breakage was caused by a dishonest or willful act, or the gross negligence of the employee. Therefore, employers who seize the wages of their servers for failing to prevent a “dine and dash” are breaking the law, and can be held legally responsible.

Illegally taking wages of employees who fail to prevent theft are just one problem of the restaurant industry in California. There is also rampant sexual and racial discrimination, problems with undocumented workers, and in some cases failure to pay minimum wage or overtime. Many restaurants pay their workers in cash and often don’t keep proper documentation on things like social security and taxes, which can lead to trouble for the employees later. Restaurants often have very low-profit margins and are forced to cut corners in other areas in order to stay in business.

If you are working in the restaurant industry and have had problems with your legal rights being violated, it may be time to seek an employment law attorney. You cannot have your wages taken away in California because a customer chose to steal from the restaurant. You have the legal right to a workplace free from harassment or discrimination on the basis of sex, race, age, disability, national origin, sexual orientation, religion, and other similar reasons. You are entitled to a minimum wage, and overtime if you work in excess of a certain number of hours per week. If your employer fails to follow the law, you are entitled to a variety of remedies, which depend on your situation.

If you are in San Francisco or Oakland and believe your legal rights are being violated by your employer, call Micha Star Liberty, Oakland employment law attorney, at 510-645-1000 or 415-896-1000. She helps clients with their employment law issues, and will be happy to consult with you on your case.